RESTITUTION OF CONJUGAL RIGHTS: A POOL OF CONTROVERSIES

On Tuesday, Supreme Court has referred the plea challenging the power conferred by the Hindu Marriage Act on courts to direct the restitution of conjugal rights of an estranged couple ( section 9, Hindu Marriage Act 1955) to a three judges bench. The petitioners have also challenged the identical provision in section 22 of the Special Marriage Act and Rules 32 and 33 of Order XXI of the CPC on the execution of the decree for restitution of conjugal rights. Under section 13 (1-A) of the Hindu Marriage Act, if there has been no restitution of conjugal rights between the parties for a period of one year or more after the decree is passed, it qualifies as a valid ground for divorce. Either party may invoke it for the dissolution of the marriage.
In October last year, a woman, an engineer in a multi-national IT major, had also mounted a challenge to the court-mandated restitution of conjugal rights, contenting that such a “coercive act” on the part of the state violates her sexual and decisional autonomy, her right to privacy and her dignity, all of which come within the purview of her right to life and personal liberty under Article 21. It was her case that compelling her to return to her husband against her wish was tantamount to marital rape. However, the division bench of the Supreme Court had refused to entertain that petition on the ground of it being premature at that juncture.
The principle of restitution of conjugal rights has been borrowed from English law. The remedy for restitution for conjugal rights owes its origin to the Ecclesiastical Courts of the West. Such courts by decree of restitution of conjugal rights compelled the recalcitrant spouse to discharge the due obligation towards the complaining spouse. In modern India, the remedy is available to Hindus under Section 9 of the Hindu Marriage Act, 1955, to Muslims under general law, to Christians under Section 32 and 33 of the Indian Divorce Act, 1869, to Parsis under Section 36 of the Parsi Marriage and Divorce Act, 1936 and to persons married according to the provisions of the Special Marriage Act, Section 22 of the Special Marriage Act, 1954.
Section 9 of Hindu Marriage Act 1955 has always been full of controversies. The constitutional validity of the provision for restitution of conjugal rights has time and again been questioned and challenged. The constitutional validity of the provision for restitution of conjugal rights has time and again been questioned and challenged. The earliest being in 1983 before the Andhra Pradesh High Court in T.Sareetha v. T. Venkatasubbaiah where the Hon’ble High Court held that the impugned section was unconstitutional. The Delhi High Court in Harvinder Kaur v Harminder Singh though had non-conforming views. Ultimately Supreme Court in Saroj Rani v. Sudharshan gave a judgment which was in line with the Delhi High Court views and upheld the constitutional validity of the Section 9 of the Hindu Marriage Act, 1955 and over-ruled the decision given in T. Sareetha v. T. Venkatasubbaiah. Sareetha and Saroj Rani bring out the core arguments offered on either side to the issue of restitution of conjugal rights. The major grounds for challenge to the constitutionality of S.9 of the Act are as in violation of Articles 14 and 21 of the Indian Constitution.
The Supreme Court upheld the validity of section 9, Hindu Marriage Act while observing that “This is so as an inducement by the court in appropriate case when the court has decreed restitution for conjugal rights and that the court can only decree if there is no just reason for not passing decree for restitution of conjugal rights to offer inducement for the husband or wife to live together in order to give them an opportunity to settle up the matter amicably. It serves a social purpose as an aid to the prevention of break-up of the marriage.”
Thus, the new petition filed in the Supreme Court have less chances of getting a remedy as the Supreme Court has already decided on the said issue. It may be the case that the coming of Right to Privacy in the Constitutional spectrum gives some new arguments to the case but the possibilities of success seems to be less.

By-
Deeksha Gupta
Student Reporter- INBA